Before the Law

A new book on Isaeli courts in the West Bank and Gaza.

By

April 14, 2005

An Israeli Jew and a Palestinian meet in transit right after having been sentenced in court. The Palestinian asks the Jew how much time he got. “Three years,” says the Jew. “The judge was relatively lenient, though, and took into account that the guard who tried to stop me from robbing the bank didn’t die from his wounds. How much time did you get?”

“Seven years for driving without my headlights on,” says the Palestinian.

“Wow! That is a hefty punishment,” the Jew exclaims.

“On the contrary, my judge was also lenient. He noted that if I had been caught driving without headlights during the night he would have sentenced me to fifteen years.”

Black humor like this circulated in Israel during the first intifada, functioning as a coping mechanism for liberal sabras bewildered by the egregious violations their country was perpetrating against Palestinians. This particular joke alludes to the discriminatory and often absurd logic of the military court system in the occupied West Bank and Gaza Strip, a system that is explored in depth for the first time in Lisa Hajjar’s Courting Conflict.

Hajjar, a professor in the Law and Society Program at the University of California, Santa Barbara, argues that the military court system has been the centerpiece of Israel’s controlling apparatus in the occupied territories. It has served as an extremely important component within the broader range of governing institutions and practices in which Palestinians are tracked in grids of surveillance, subjected to restrictive codes of conduct and physically immobilized through the use of closures, curfews, checkpoints, walls and prisons. During the first intifada (December 1987-93), between 20,000 and 25,000 Palestinians were arrested every year, the highest per capita incarceration rate in the world at the time. Even though arrest rates later declined, the estimated number of prosecutions since the beginning of occupation in 1967–half a million out of a population of 3.5 million–underscores the carceral nature of Israeli military rule. Thus it is not surprising that virtually all Palestinians have had some experience with the military court system, whether personally or through the arrest and prosecution of relatives, friends and neighbors.

While the bulk of Hajjar’s book discusses the workings of the military courts, she begins her investigation with an analysis of the complex legal system that Israel put in place in the occupied territories, showing how this system serves as the backdrop for the courts themselves. Immediately following the 1967 war, Israel formulated a policy that rejected the applicability of the 1949 Fourth Geneva Convention, the most important humanitarian law pertaining to the occupation of conquered territories and their civilian populations, to the West Bank and Gaza. Next, it set up a legal system composed of Ottoman, British Mandatory, Jordanian and Egyptian law, and Israeli military orders. The military orders are decrees issued by military commanders that immediately become law for all Palestinians living in the area.

Over the years, military commanders have issued at least 2,500 such orders–orders that regulate every aspect of the occupied population’s life, from publishing newspapers and traveling abroad to grazing sheep and using donkeys for transferring goods. The commanders were vested with powers not only to enact laws but to cancel and suspend them, which enabled them to continuously reshape the legal system in accordance with Israel’s political objectives.

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Hajjar, the daughter of a Finnish mother and a father of Syrian descent, conducted her research in Israel and the occupied territories primarily in the 1990s. Both Palestinian and Israeli officials often mistook her for a Jew. She spent much of her time observing trials, where she established relationships with the various parties on both sides, and came to understand what made the military courts tick. One chapter is dedicated to the judges and prosecutors, while another concentrates on defense lawyers, some of whom are motivated by a powerful conviction that the law is a crucial tool for producing justice. There is, of course, a chapter on the defendants themselves, and one on the Druse soldiers who spend their three years of military service as translators in the courts, responsible–ostensibly–for facilitating communication between Jewish-Israeli judges and prosecutors and the Palestinian defendants and their lawyers. In these chapters, Hajjar takes the reader on a journey to the courts themselves, providing her audience with a sense of the random bargaining and humiliation and the seemingly endless tension informing the judicial interactions.

There is, for example, the story of a Gazan lawyer who lost a case after a soldier testified that he had seen the attorney’s client throwing stones at 9:15 am in the Jabalya refugee camp. Several days later the same soldier appeared in court and testified against another client, reporting that he had seen the man throwing stones at 9:30 am on the same day as the earlier case, only this time in the Rafah refugee camp. Asked by the Palestinian lawyer how long it takes to get from Jabalya to Rafah, the soldier said no less than forty-five minutes. When the lawyer then asked the judge to dismiss the case because the soldier could not possibly have been in both places, the judge threw the lawyer out of court on the grounds that his line of questioning insulted the soldier. Courting Conflict is full of such stories, but it also underscores that not all judges rule in favor of the prosecution, and that the efforts of defense attorneys are not entirely in vain.

Hajjar’s intervention is unique in the literature on the Israeli-Palestinian conflict. Even though an enormous amount has been written on the occupation, only a few books actually analyze–rather than describe–Israel’s controlling apparatus in the West Bank and Gaza Strip. Among the exceptions are Naseer Aruri’s Occupation: Israel Over Palestine, James Ron’s Frontiers and Ghettos and A Civilian Occupation by Rafi Segal and Eyal Weizman. Courting Conflict is in this select company.

From time to time, however, Hajjar’s evidence belies her conclusions. She characterizes the courts not only as a site of control, oppression and subordination but also as a site of Palestinian resistance; yet her descriptions do not lend themselves to this claim. It was the Israeli prisons, rather than the courts, that engendered organized resistance. They were considered universities of sorts, where thousands of Palestinians deepened their ideological convictions, received operational training, improved their Hebrew skills and created alliances with the members of other political factions–all of which prepared the inmates for continuing their struggle once they were released.

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This struggle is generally understood as a classic national conflict. Hajjar, however, seeks to recast it as a struggle over human rights–from the right to health, education and a livelihood to freedom of speech, association and movement. It is a well-intentioned effort, given how foul nationalist politics can be, but her own descriptions challenge this theoretical assertion, since the national divide figures on every other page. Although numerous rights have been invoked by Palestinians to codify their demands, at least since the 1970s, the national aspiration for statehood ultimately overshadows and informs all other rights claims.

But these flaws in no way diminish the value of the book. Especially striking is Hajjar’s chapter on the Druse translators, since it reveals both the complexity and the insidious nature of Israeli rule. In order to grasp their position in court, Hajjar persuasively maintains that one must first understand the particular niche that the Druse–Arabs who practice an offshoot of Shiism established in Cairo in the eleventh century by followers of Caliph al-Hakim–occupy within the sociopolitical order of Israel/Palestine. Immediately after independence Israel began distinguishing Druse from all other non-Jewish sectors of Israeli society. By 1962 a distinct national category was officially created, and Israeli ID cards accorded the Druse their own unique identity separating them from the “Arab.”

This engineered “non-Arabness” of the Druse was crucial for incorporating them into the military. “Arab Arabs” are not conscripted, since they are closely associated with the state’s enemies. Thus, Druse became preferred candidates for the role of translators, since they have both bilingual skills and a “non-Arab Arab” status. Not unlike the natives who lent their services to the colonizers of old, Druse soldiers accept the state’s authority and the legitimacy of its policies. Having been given a stake in the system, they tend to become complicit with Israel’s oppression of Palestinians. “Palestinians are guilty,” one Druse translator blithely told Hajjar. “They hate us. They throw stones. If they don’t throw stones today, they will throw stones tomorrow.” Like many of his fellow translators, this Druse has become a mimic man, adopting the worldview of the prosecution.

But just as the reader begins to comprehend the precarious position of the Druse translator, Hajjar adds another twist, showing that translation within the courts is less about communication between people who speak different languages and more about establishing the legitimacy of the judicial process. The Druse soldiers are not professional legal translators, and they only translate the general meaning of the proceedings so that each party will get a sense of the argument made by the other side. The defendant often does not know what is being said, since the translators frequently fail to translate the interactions between the judge and the two lawyers, leaving him (and in some cases her) completely in the dark. Imagine, for a moment, being on the stand as a defendant without knowing exactly what the prosecutor or judge is saying. Imagine being a defense lawyer and understanding only the general thrust of the prosecutor’s claims.

The irony is that the lack of adequate translation is unimportant, since the legal argumentation has few if any implications for the defendant. The outcome is predictable, if only because some 90 to 95 percent of Palestinians who are charged with crimes are convicted and more than 97 percent of all cases in which charges are brought are determined outside the court in a plea bargain. Hajjar likens the judicial process taking place outside the courtroom to a souk, or marketplace, where defense lawyers bargain for a better deal like merchants. One lawyer suggests that his role is simply to beg for mercy in a merciless environment.

Despite the staggering percentage of defendants whose convictions have been determined by plea bargains outside the military courts, Hajjar shows how the courts and the complex legal system that Israel established in the territories set out to sanction the legality and morality of the occupation. This is crucial. Israel has always been wary of rejecting the law outright, attempting to project an image of an occupation informed by the rule of law and principles of justice. Courting Conflict thus undermines simplistic conceptions regarding the significance of the rule of law by laying bare how the judiciary institutions in the West Bank and Gaza were used to legitimize egregious human rights violations and the use of violence.

While Hajjar’s book provides the necessary background for understanding the role of law and military courts in the occupied territories, the situation in the West Bank and Gaza has changed in a fundamental way in the last few years. If up until September 2000 Israel controlled the occupied inhabitants primarily through the application of the law–including, to be sure, the enforcement of draconian laws that both legalized the incarceration of thousands of political prisoners and permitted deportations, house demolitions, extended curfews and other forms of collective punishment–perhaps the most striking characteristic of the second intifada is the extensive suspension of the law. In the first intifada any suspension of the law was still considered an exception to the rule; in the second one it became the norm.

The paradigmatic example of this suspension is Israel’s pervasive employment of extrajudicial executions: 469 Palestinians have been killed in the past four and a half years in this way, and even Israel concedes that 288 of them were “innocent bystanders.” The fact that not one Israeli soldier has been tried for these killings and that they are in fact part of an overt policy suggests that the occupied inhabitants have been reduced to what the Italian political philosopher Giorgio Agamben has called homo sacer, people who can be killed without it being considered a crime. At least for these Palestinians, the military courts have become superfluous, since Israel is no longer interested in trying them.

In order to understand this dramatic change in Israel’s relation to the law, it is important to examine its application to Israeli soldiers rather than to Palestinians. Since the eruption of the second intifada, 3,161 Palestinians have been killed, 636 of them minors. Moreover, of the 751 Palestinians who were killed in 2004, two-thirds had not participated in any kind of fighting. And yet the military prosecutor has opened only 104 investigations concerning unlawful shootings during the past four and a half years, and of these, twenty-eight were actually prosecuted and eighteen found guilty. One soldier who killed a 95-year-old Palestinian woman was sentenced to sixty-five days in prison.

The first intifada was very different in this respect, since most military offenses were subjected to legal scrutiny. From 1987 to 1990, Israel killed 743 Palestinians, 154 of whom were minors–fewer than it killed in 2004. The military, however, carried out an investigation of every killing and initiated a total of 1,256 investigations against soldiers who were suspected of breaching the regulations. Although the military ended up prosecuting only forty soldiers for unlawful killings, the soldiers’ actions were, nonetheless, constantly investigated by the judicial authorities. Thus, if a defining feature of the first intifada was ongoing legal scrutiny, the second intifada can be characterized by the extensive withdrawal of the law. Of course, it also further unmasked the true face of power that stands behind the application of law, and laid bare the relationship between occupier and occupied.

The result of these sweeping and disturbing changes is a pervasive despair prevalent in Israel/Palestine, which is well captured in Hajjar’s book despite its failure to address some of the essential features of the second intifada. This, one should keep in mind, is not how most people felt during the first intifada. Even amid the horror there was always a ray of light. This sense of hope was conveyed in the joke about Dita, the switchboard operator at the Defense Ministry.

Dita was puzzled by a man who called every morning, asking to speak with Defense Minister Ariel Sharon. Each morning she would tell him that Sharon was not the minister of defense, and he would reply, “Oh, thank you!” before hanging up. Finally, after three weeks, Dita asked the man, “Sir, every morning you call up and ask to speak to Mr. Sharon, and I keep telling you that he is not minister of defense. Why do you keep calling?” The response was immediate: “It’s so encouraging to hear; it gives me some naches for the rest of the day.”

The fact that Sharon is not defense minister but prime minister surely does not help those who want to take a step back, if only for a moment, and laugh at the quagmire the two peoples have sunk in. More important, though, the ruthless violence that both societies have been subjected to in the past few years has left little room for joy. It is therefore no surprise that this intifada has not produced any new jokes.